Some more EAT decisions...

Posted

Cerberus Software v Rowley [Morison J., 4.5.99]: Analysis and application of the principle in Abrahams v Performing Rights, namely that an employee who is dismissed with contractually authorised pay in lieu of notice is not required to mitigate his loss, and does not have to give credit for subsequent earnings.

Collinson v Central Parking [Morison J., 28.7.99]: A tribunal chairman refused to provide extended reasons three months after summary reason were issued. The EAT allowed an appeal against this refusal. The chairman then wrote to the EAT, stating that the tape records of his verbal reasons had been destroyed six months after the original decision. The EAT reviewed its own Order, withdrawing the requirement that the chairman produce extended reasons on the grounds it was impractical to expect him to do so. Note - the EAT stated it had no power to order a Chairman to produce extended reasons, only to review a chairman's refusal to provide reasons once an application had been made to the Chairman.

DTI v Walden [HHJ Peter Clark, 22.7.99]: An employee, when claiming against the DTI for a payment out of the National Insurance fund becuase of the insolvency of the employer company, must prove that the employer company was insolvent within the meaning of ERA 1996, s183. Mere proof that the employer company had been dissolved was inadequate, because a company could be dissolved for reasons other than those set out in s183 (eg a defunct company) when no payment out of the fund should be made.

Lewisham v Candy [Charles J., 9.6.99]: In circumstances where a large employer (10,000 employees) is making a team of roofers redundant, and the roofers are represented by a union, it is unreasonable (and therefore unfair) for the employer to consult with the union but not with the individual employees, since the union might have a conflict of interest.

React Staffing Agency v Benstead [Morison J., 28.7.99]: The employer sent a fax to the employment tribunal, one week before the hearing, asking for an adjournment on the grounds she had a hospital appointment. She was able to produce the fax confirmation slip (which had the correct fax number on and an imprinted confirmation from the Employment Tribunal's fax machine). The fax was not placed before the ET chairman, and the ET found that here had been unauthorised decuctions from the applicant's wages. Indeed, despite the fax confirmation, the ET asserted to the EAT that the fax had never been received. The EAT held that this was clearly an appropriate case for allowing an appeal and remitted the case to a fresh tribunal.

COMMENT: It is difficult to see an error of law in the ET's decision, since there was no decision refusing an adjournment. It may be that an application for a review, rather than an appeal to the EAT, would have been an equally appropriate course for the employer to take.

William West v Fairgrieve [Morison J., 25.6.99]: An unsurprising decision of the EAT, in which it holds that negotiations for a pay increase between the transferor and a trade union after a TUPE transfer has occurred cannot bind the transferee.